I am a big fan of the work of Tenth Circuit Judge Neil Gorsuch and was very happy that President Donald Trump picked him last night for the Supreme Court vacancy.
Writing in the Wall Street Journal, David Rifkin and Andrew Grossman first praise Gorsuch’s eloquent and humane style of opinion-writing, then get down to particular cases. Many are of interest to those interested in resisting excessive government power, especially when centralized in Washington:
…Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed….
Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.
What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.
The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.
Some more links:
- More background on the judge: Denver Post, Ramesh Ponnuru/NRO, Ilya Shapiro;
- He won Senate confirmation by voice vote in 2006 [hearings and related documents; floor debate]
- 11/9 Coalition on his civil liberties/Bill of Rights stands, including Fourth Amendment rulings;
- A key Gorsuch case on religious liberty: prison with sweat lodge for Native Americans broke the law by denying access to one inmate (Yellowbear v. Lampert). Extraordinarily clear and well written, the opinion also helps illustrate why Gorsuch, if confirmed, may fill Scalia’s place as the Court’s most talented writer.
- Everyone remember to switch positions on whether the Supreme Court is perfectly functional with eight members!
- Former Obama administration Acting Solicitor General Neal Katyal, in the New York Times (“Why Liberals Should Back Neil Gorsuch”);
- The judge in a 2008 dissent: don’t make it too easy to sue litigation experts who change their minds [our first, second Overlawyered posts]
- Just don’t tell anyone that he’s a Cato Institute author [Policy Analysis 1998, defense of term limits constitutionality]